Stulginski v. Cizauskas

• Decision Date: 08 March 1939
• Citation: 5 A.2d 10,125 Conn. 293
• Court: Connecticut Supreme Court
• Parties: STULGINSKI v. CIZAUSKAS.

5 A.2d 10

125 Conn. 293

STULGINSKI v. CIZAUSKAS.

Supreme Court of Errors of Connecticut.

March 8, 1939

Appeal from Court of Common Pleas, District of Waterbury, New Haven County; Edward J. Finn, Judge.

Action to foreclose a judgment lien by Walter Stulginski against Mike Cizauskas brought to the court of common pleas. A demurrer to the defendant's answer was sustained, and from a judgment rendered for the plaintiff, defendant appeals.

No error.

Harry J. Conway, Victor M. Gordon, and Arthur B O'Keefe, all of New Haven, for appellant.

Harry M. Albert and Michael V. Blansfield, both of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

BROWN Judge.

The complaint is for the foreclosure of a judgment lien upon the defendant's land in Waterbury, filed to secure a judgment for the plaintiff against the defendant for $3248.54 and costs rendered April 21, 1938. The defendant's answer admits the allegations of the complaint except that the judgment had never been paid in whole or part, and alleges that: the judgment was rendered in an action for the defendant's tort which inflicted physical injury during an altercation with the plaintiff, a fellow employee of the Waterbury Rolling Mills; this injury was sustained by the plaintiff in the course of his employment and because of it $2000 was paid by the Mills and its insurer under the Workmen's Compensation Act, Gen.St.1930, § 5223 et seq. pursuant to an award by agreement, a copy of which is incorporated in the answer; and the injury for which this $2000 was paid was the same one upon which the judgment for the plaintiff is predicated. The defendant claims that the plaintiff's judgment be reduced by the application of this $2000 by way of recoupment or set-off. The plaintiff demurs to this defense on the ground, in substance, that the payment to the plaintiff under the Workmen's Compensation Act was not available to reduce the amount of the judgment secured by the lien.

The substance of the defendant's contention is that this is an equitable proceeding, that it is unconscionable for the plaintiff to realize upon this judgment predicated upon full compensation for his loss sustained, and in addition to keep the $2000 paid by his employer by reason of this same tort. His counsel concede that the defendant cannot prevail if this case falls within the well established principle laid down in Roth v. Chatlos, 97 Conn. 282, 287, 116 A. 332, 22 A.L.R. 1554, that payment to the plaintiff by a third party of compensation for injuries sustained by the defendant's wrongful act cannot relieve him of his obligation to pay therefor. Their claim is, however, that that rule is not applicable to the situation here because the defendant and the Rolling Mills were joint tort feasors, and therefore the latter is not a ‘ collateral source,’ which is an essential requisite under the rule.

Leaving out of consideration for the moment the provisions of the Workmen's Compensation Act, and assuming what goes beyond the present record, that the defendant's tort was an act done by him as a servant of the mills within the scope of his employment, which is indicated by the facts recited in our opinion in Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 357, 199 A. 653, this would be insufficient to constitute the mills and the defendant joint tort feasors in the sense essential to support the defendant's claim. While a master and servant may under our law be jointly sued for a tort of the latter committed within the scope of his employment (Philips v. Winchester, 100 Conn. 12, 14, 122 A. 792), they are not joint tort feasors in the sense that they are equal wrongdoers without right of contribution; for the master may recover of the servant the amount of loss caused to him by the tort, including any sum he has been required to pay a third person on account of it. Smith v. Foran, 43 Conn. 244, 250,21 Am.Rep. 647; Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 328, 16 S.Ct. 564, 40 L.Ed. 712; 18 R.C.L. 502. ‘ The master is not held on any theory that he personally interferes to cause the injury. It is simply on the ground of public policy, which requires that he shall be held responsible for the acts of those whom he employs, done in and about his business, even though such acts are directly in conflict with the orders which he has given them on the subject. The liability of the servant, on the other hand, arises wholly because of his personal act in doing the wrong. It does not grow out of the relation of master and servant, and does not exist at all, unless it would also exist for the same act when committed, not as the servant, but as the principal. Liabilities created on two such wholly different grounds cannot and ought not to be joint.’ Taft, J., in Warax v. Cincinnati, N. O. & T. P. R. Co., C.C., 72 F. 637, 643. See also Son v. Hartford Ice Cream Co., 102 Conn. 696, 699, 129 A. 778. Payments made by the employer are not made by the wrongdoer but by one who is obligated secondarily to answer for the acts of another. That the wrongdoer is an employee does not distinguish the case from one where he does not stand in that relationship to the person who is required to pay the compensation.

The provisions of the Workmen's Compensation Act which comprise a vital part of the existing law under which this case must be determined, however, on this record afford a full and complete answer to the defendant's argument. Section 5226, which, as the exhibit in the defendant's answer shows, governs the situation before us, provides that ‘ the employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment.’ This eliminates the common-law liability of the employer to the employee....